Gun Background Checks Explained

Editor’s Note: This article was first posted at Ammo.com, and is re-posted with permission.

How the State Came To Decide Who Can and Cannot Buy a Firearm

Prior to 1968, most adults in the United States could purchase a firearm without state interference. Guns were available in local retail stores, as well as mail-order catalogs, and as long as you hadn’t been convicted of a felony and you had the funds, there weren’t any questions asked.

Although many people hold a strong opinion for and against gun background checks, they’ve proven to be an integral part of the state’s gun control apparatus – and they don’t appear to be leaving anytime soon.

Since background checks are such a requirement for today’s gun enthusiasts, it’s important for gun owners (and those who may someday be gun owners) to understand everything they can, including how the current system works and how it came to be.

The History of Gun Background Checks in the U.S.

The history of background checks for gun purchases reaches back to the first restrictions placed on individuals trying to purchase firearms. Here in the U.S., this occured after the Civil War, when several southern states adopted “Black Codes,” which replaced the prior slave codes and worked to suppress the freedoms of black Americans. Among other restrictions, the Black Codes forbade African-Americans from owning firearms.

The Federal Firearms Act of 1938 began restricting the sales of firearms, requiring those in the business of selling firearms to purchase a Federal Firearms License (FFL) and maintain a list of persons who purchased firearms, including their name and address. The Firearms Act of 1938 also listed convicted felons as the first prohibited persons – who are not allowed, by law, to own, purchase, or possess firearms.

The 1963 Kennedy assassination was followed by additional high-profile assassinations over the next five years:

February 21st, 1965: Malcolm X was assassinated by three members of the Nation of Islam who bull-rushed him on-stage during a speech in Harlem with a 12-gauge sawed-off shotgun and handguns chambered in .45 ACP and 9mm. X had publicly broken away from the Nation of Islam and was openly critical of its leader, Elijah Muhammad.

April 4th, 1968: Martin Luther King Jr. was assassinated by escaped convict James Earl Ray using a .30-06 caliber rifle in Memphis. The prior year Ray had broken out of the Missouri State Penitentiary by hiding in a bread delivery truck. Ray was a notorious escape artist and career criminal who used an alias when purchasing the rifle.

(After the assassination, investigators launched a sixty-five day manhunt for King’s assassin that led them across two continents and four countries which culminated in Ray’s arrest at London’s Heathrow airport where he was caught traveling on a forged Canadian passport. A decade later in 1979, Ray again broke out of jail – this time escaping from Tennessee’s most notorious maximum security prison, Brushy Mountain State Penitentiary, where he was serving a life sentence for King’s assassination.)

June 5th, 1968: Two months after King’s assassination in Memphis, Democratic presidential candidate Robert F. Kennedy (JFK’s younger brother) was assassinated by Palestinian-born Sirhan Bishara Sirhan in Los Angeles using a revolver chambered in .22. Earlier that day, Kennedy had won the South Dakota and California presidential primaries. Sirhan was part of an occult organization called the Rosicrucians.

Through the Gun Control Act of 1968, the federal government placed restrictions on the sale of firearms across state lines and expanded the prohibited persons who were not allowed to purchase or possess firearms. Under the new law, gun purchases became illegal for those who were:

Convicted of a non-business-related felony

Found to be mentally incompetent

Users of illegal substances

To determine this information, those who wished to purchase a firearm from an FFL had to complete a questionnaire of yes/no questions such as “Are you a convicted felon?” and “Are you a fugitive from justice?” Although these questions needed to be answered, they did not require verification from the gun seller.

In 1972, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) was formed as a way to help control the illegal sales and use of firearms.

In March of 1981, the assassination attempt of President Ronald Reagan led to further gun legislation with the Brady Handgun Violence Prevention Act of 1993, which amended the Gun Control Act of 1968 to now require background checks for the purchase of firearms from a retailer. The Brady Act, as it’s known today, also led to the development of the National Instant Criminal Background Check System (NICS), which launched in 1998, and is the current law on background checks for gun purchases in the U.S.

The National Instant Criminal Background Check System

The National Instant Criminal Background Check System (NICS) was mandated by the Brady Handgun Violence Prevention Act of 1993, and was launched by the FBI on November 30, 1998. The NICS is used by FFLs to check the eligibility of those who wish to purchase firearms.

Located at the FBI’s Criminal Justice Information Services Division in Clarksburg, West Virginia, the NICS is currently used by 30 states and five districts, as well as the District of Columbia, to check the backgrounds of those who wish to purchase firearms. Those states that opt not to use the NICS have their own point of contact (POC) to complete background checks.

The NICS applies a person’s identifying characteristics, including name and date of birth, to its own index, as well as the National Crime Information Center (NCIC) database and the Interstate Identification Index. These systems compare the intended purchaser’s demographic information against the national databases to see if they match someone deemed a prohibited person. Prohibited persons include those who are or were:

Convicted of a crime punishable by imprisonment for a year or more

Fugitives from justice

A user of or addicted to a controlled substance

Adjudicated as a mental defective or been committed to a mental health institution

Illegal aliens

Aliens admitted to the U.S. under a nonimmigrant visa

Discharged from the U.S. Armed Forces under dishonorable conditions

Renounced their citizenship to the U.S.

Subject to a court order that restrains their interactions with an intimate partner or child

Convicted of domestic violence

Since its conception, NICS has completed over 300 million background checks and has issued more than 1.3 million denials. The NICS is available 17 hours a day, seven days a week, except for Christmas Day.

How Do Background Checks Work?

When you visit a gun store and attempt to purchase a firearm, you must complete a Firearm Transaction Record, or ATF Form 4473 – which requires the intended purchaser’s name, address, and birthdate. The form also requires a government-issued photo ID and asks questions regarding the individual’s appearance, including height and weight.

Once the form’s completed, the gun seller can either call the 1-800 number for NICS or use the online system to run the background check. In over 90 percent of the cases, the results are almost immediate, with the system either approving, delaying, or denying the purchase within minutes.

With an approval, the sale can immediately proceed as planned with you purchasing the firearm. If there is a delay, the NICS and FBI investigate the inquiry over the next three days. If the FFL does not hear anything within that time period or if a determination cannot be made, then the retailer can, but does not have to, continue with the firearm transfer. When this occurs, it’s often referred to as a “default proceed” sale.

When a denial is made, which occurs in only about 2 percent of background checks, the retailer is unable to sell or transfer the firearm to the individual in question. You must submit a request to the NICS to receive the reason for your denial, the most common of which is a history of a felony conviction.

If you believe you were given an erroneous denial, you can appeal the decision by completing a Voluntary Appeal File (VAF), which can be done online or by mailing your request to the FBI. Along with the VAF application, you will also need to be fingerprinted to move forward with the appeal process.

When is a Background Check Needed to Purchase a Gun?

A background check is necessary any time you purchase a gun from a retail provider, which is defined as someone conducting business in the sale of firearms. These sellers must have a Federal Firearms License (FFL) and are legally mandated to complete a background check for every firearm sold to a non-licensed individual.

It doesn’t matter if you purchase the firearm in a brick-and-mortar store, a gun show, online, or through a magazine – if the seller is a retailer provider (i.e. has an FFL), then the background check must occur.

When is a Background Check Not Needed to Purchase a Gun?

Under federal law, any adult can sell a personally owned firearm to another adult in the same state as long as you know, to the best of your ability, that they’re allowed to own a firearm.

Private sellers aren’t required to ask for identification, they don’t have to complete any forms, nor keep any records of the transaction. What’s more, federal law does not mandate a background check to purchase a firearm from a private seller. This includes buying a gun from a relative, a neighbor, or a friend.

Although federal law does not demand a background check for the private sale of firearms, some states do require a background check.

If you inherit or are gifted a firearm, you don’t need a background check.

Do Gun Background Checks Differ By State?

Thirty states, five districts, and D.C. all rely solely on the NICS for gun background checks. The following 13 states use their own full point of contact (POC) data system for gun background checks and do not use the FBI’s system:

California

Colorado

Connecticut

Florida

Hawaii

Illinois

Nevada

New Jersey

Oregon

Pennsylvania

Tennessee

Utah

Virginia

Some states, namely Maryland, New Hampshire, Washington, and Wisconsin, use NICS for long guns, but a state program for background checks on handguns. Iowa, Nebraska, and North Carolina use NICS, but have a partial POC for background checks in relation to handgun permits.

Many of these states have added their own provisions to their background checks, on top of what federal law mandates. In most cases, they also include looking at state and local records to determine if the person in question should or should not be allowed to own a firearm.

Some states have implemented universal background checks via an FFL, even during a private gun sale. While Maryland and Pennsylvania require background checks for all handgun transfers, regardless of retail or private sale, the following states require a background check for all firearm transfers:

California

Colorado

Connecticut

Delaware

District of Columbia

Nevada

New Jersey

New York

Oregon

Rhode Island

Vermont

Washington

In addition, some states require permits to purchase firearms. Hawaii, Illinois, and Massachusetts require a permit for all gun purchases, while Iowa, Michigan, Nebraska, and North Carolina require a permit for purchasing a handgun. These permits often require their own background check as well.

It should be noted that although these laws exist in Nebraska, they’re not currently being enforced, but are expected to be by January of 2020.

But Isn’t There a Gun Show Loophole?

There is no gun show loophole when it comes to background checks for gun purchases. The law clearly states that if you purchase a firearm from a person with an FFL, a background check must occur. If you purchase a gun from a private seller, you don’t need a background check. These same two principles apply whether you’re at a gun show or not.

So if you purchase a firearm from a gun seller with an FFL at a gun show, you will need to complete Form 4473 and have a background check. Under federal law, if you purchase a gun from a private seller at a gun show, you don’t need to have a background check. Your state laws may differ.

Of the average 4,000 gun shows in the U.S. each year, it’s estimated that 50 to 75 percent of vendors have an FFL, and therefore require purchasers of firearms to complete background checks. But that doesn’t mean that 25 to 50 percent of vendors are private sellers of firearms – many of these are vendors that sell gun paraphernalia. Gun shows are filled with vendors who sell everything from t-shirts and ball caps to holsters and concealed carry gear, and it’s these sellers that make up the majority of the remaining non-licensed vendors.

Are there private gun sellers at gun shows? Absolutely. But the idea that criminals are flocking to gun shows to illegally purchase firearms is untrue. In a report by the Bureau of Justice Statistics, only 0.7 percent of convicted criminals purchased their firearms at gun shows.

Have Background Checks Stopped Gun Violence and Crimes?

The research on the effectiveness of background checks to stop gun violence shows conflicting evidence. In an October 2018 published study completed by U.S. Davis and Johns Hopkins Bloomberg School of Public Health, in the 10 years following California’s comprehensive background checks, the number of gun homicides and suicides were not impacted. In a similar study published in July of the same year, gun violence did not increase with the repeal of comprehensive background checks.

Yet other studies show that background checks do reduce violence. A 2015 study found that requiring Connecticut handgun owners to go through a background check led to a 40-percent decline in gun homicides and suicides over a 10-year period.

This contradicting research shows that the problem of criminals getting their hands on guns can’t be stopped by mere background checks. According to the Department of Justice Special Report on Firearm Violence, 77 percent of state prisoners associated with firearm crimes received their firearm through:

Theft

Black market

Drug dealer

On the street

Family or friends

Not one of these criminals would have been affected by background checks, universal or otherwise. After all, most criminals don’t feel obligated to use legal means to obtain their firearms since they’ve either broken laws previously or plan to do so.

Beyond theft and the black market, criminals also use straw purchases, which are illegal, to get their hands on firearms. Straw purchasers are people who can pass a background check and intentionally purchase firearms for criminals. The San Bernardino terrorists used a straw purchaser to get the firearms they used to kill 14 people in the 2015 mass shooting.

Background checks for gun purchases often become a talking point after these types of events, but those who partake in this terroristic activity often don’t have criminal histories that would flag a background check. For instance, the Virginia Tech madman legally purchased a gun at a Virginia-based FFL and passed his background check before using it to shoot fellow students.

And then there’s the fact that sometimes the background check system fails. NICS is not a 100-percent absolute system, and time has shown that gun background checks can only be as reliable as the records they contain. Devin Kelley, the Texas Church madman, was prohibited by law to own or purchase a firearm because of a domestic violence conviction while in the Air Force. Yet Kelley purchased four firearms between 2014 and 2017, completing Form 4473 and being approved each time by NICS.

In this case, the Air Force failed to report the court marshall to the FBI’s National Crime Information Center, which the NICS relies on for information. So, again, the system is only as good as the information it contains.

(It’s also worth pointing out that Kelley’s murderous rampage was stopped by a private citizen, a plumber named Stephen Willeford, who legally owned an AR-15. Kelley was shot in the leg and torso by Willeford, stopping him from murdering more people inside that church before the police could arrive.)

And whereas sometimes the system which gun background checks rely upon is incomplete, in other instances it produces false positives. In other words law-abiding citizens get incorrectly matched by NICS or their respective state-level POC data system with criminals who have similar names. And if that happens to you, then you could be denied your right to own a gun because of a bureaucratic error. Estimates from the Crime Prevention Research Center pointed to 93 percent of initial NICS denials turning out as false positives in 2009 with similar estimates in 2010. (The Obama administration quit reporting these statistics after 2010.) Yes, individuals can appeal this denial and restore their gun rights, but dealing with bureacracy can be an expensive hassle.

The myriad of issues with NICS is why the National Shooting Sports Foundation (NSSF), a trade association representing the firearms industry, launched FixNICS.org in 2013. It is also why the NSSF publishes a yearly ranking of the states based on the number of mental health records they provide relative to their population – to encourage the states to comply with existing federal law, and submit any and all records establishing an individual as a prohibited person to the FBI’s databases. Their goal is to improve the existing system for everyone so that gun background checks are more accurate and complete.

Whether you like them or not, background checks are here to stay for gun owners and gun purchasers – but they are not the saving grace that some make them out to be. Background checks for gun purchases can only do so much and are not the permanent solution to keeping guns out of the hands of criminals and keeping Americans safe from gun violence. More concerning is that they give the state an ever-growing list of private citizens who own guns, and such a list has historically been used for subsequent gun confiscation attempts.

Editor’s Concluding Comments: Background check schemes are indeed a threat to our liberty. Our 1st, 2nd, 4th, and 5th Amendment rights are on the line. Please repeatedly contact you Senators and insist that they oppose both S. 42 and the Senate version of H.R.1112. (Those two background checks bills passed in the House of Representatives.)

21 Comments

JFK being assassinated did not lead to the GCA of 68′. As a senator, JFK introduced legislation to control the importation of surplus firearms in 1958. Between 1938 to 1965, congress had little interest in firearms legislation. While JFK’s assassination may have been used as rhetoric for justifying the GCA of 68′, there is a lot of literature that points to the primary cause of GCA 68′ as being the rise of violence and crime in urban centers, and the Black Panthers taking armed protest on California’s State Capitol front steps in 1967.

Understanding the historical account of what led to and followed GCA of 68′ is very important, because gun control is fundamentally an act of institutional racism. This is very paradoxical considering the leftist stance on the topic. I always wonder why this part of history is never part of the current gun control focus?

In the late 1960s, early 1970s, the gun control debate was further discussed through “Saturday Night Specials”, and was associated with being a way to combat communism. The earliest forms of militarizing police tactics where implemented during this time, too.

You are correct. It was not the assassination of JFK that prompted passage of GCA ’68. Rather, the real impetus was the assassinations of Martin Luther King and Robert Kennedy (JFK’s younger brother). RFK was killed by a Palestinean assassin, Sirhan Bishara Sirhan. He was born into a Christian family, and claimed to be a Rosicrucian.

Sirhan Sirhan, who filled his notebooks with comments such as “Long live communism!” and “R.F.K. must die!”

Check out this article when you get some time. It is a peer-reviewed article which means it may be behind a pay wall. Check scholar.google.com and if you cant find it there, let me know and I will email you a copy.

Vizzard, W. (1999). The Gun Control Act of 1968. Saint Louis University Public Law Review 18(1), 79-98.

Also this month we’re going to review the following two sections after we’ve worked our way thru that “Vizzard, W. (1999). The Gun Control Act of 1968. Saint Louis University Public Law Review 18(1), 79-98” scholarly article which MuddyKid was kind enough to share.

I’m an NRA member and a retired LEO in Calf., making me a “double despicable”, I have some issues with “background checks”. Calif. has some of the most restrictive laws on guns, and almost everything else that lawyers love. My issue is about confirming someone is eligible to buy, but NOT storing the data of who buys what. I’m at an age where I’m passing down my guns to my kids, and every year having to check and see if I’m now committing a felony. It’s past my bedtime so bear with me. Why can’t NICS be available to everyone, where you log in data to verify a buyer, register the transaction, receive an “eligibility” you can both keep, and have no records kept of who has what. Calif. courts in early 90’s allowed criminals to take plea that would drop a gun charge and accept lessor penalties to clear backlogged court calendars. I don’t think that’s changed much. Calif. DOJ didn’t keep records on long guns until a few years ago.
There isn’t much “common sense” prevailing around this, so what do others think? BTW, my folks passed down their experiences of the “Depression” growing up, and the importance of self-reliance, making me a “prepper” since 1972. I’ve followed the Golden Rule, B of R & Constitution my whole adult life.

“Universal” background checks are the paperwork needed to have a gun registry. Period. They want to know where every single gun is. And when we fall for their “common sense gun regulation” nonsense we walk right into their trap like the good sheeple our public education system has trained. Wake up people.

nicely written article. An interesting point to possible include is a comparison of the laws enacted due to some tragedy (like JFK) and if those laws would / could have prevented the tragedy. I suspect they would not have prevented the tragedy at the crux of the sensational reaction.

The pastor and his wife from Sutherland Springs spoke to our Sheepdog Seminar on Friday night. In accordance with their wishes and many others working hard to prepare us to defend, we avoid stating or publishing mass murderers names.

They gave us detailed explanations of how media exploits victims families and the documenation
showing that murderer’s name publication results actually adding to the urge of copycats to seek higher notoriety.

The harassment of the victims by both media and many alt-truth deniers, and several acts by mentally deranged people over many months on the church grounds since then, have caused anxiety and fear of further attacks due to the ongoing notoriety.

Media strangers and others have even waited until they observe parents leave their homes for work and errands, then try to trick the children into letting them in, bearing food and a wolf’s smile.

So I pass their request on to all of us and anyone we contact. No name publication of the spawn of the evil one.

Another request: stop spreading the propaganda that it’s a “shooting”, which is a sport. It’s a murder that can be halted or prevented by lawful shooters. Call it what it is: murder.

When the Bible was taught in the public schools along with our Christian heritage from our Christian Founding Fathers who established a government based Christian principles…. there was ZERO gun control and ZERO incidents in public schools involving guns.

ITS NOT GUNS! IT’S THE LEFTS TEACHINGS in the public schools which make children dead.

Don’t think for one moment when God was sued out, and Darwinism became mainstream that the children are not doing what they’re taught… “The strong shall kill the weak!”

Please tell this to your politicians so they have something to fight for our gun rights with.

In Ny we were forced to register our already registered handguns. Each county has a permit department where handguns are registered upon purchase. Gov. Cuomo passed a bill that requires permit holders to register all handguns every three years and “ renew lifetime pistol permits”. We were told the state police merely needed the records to help prevent crime. Fast forward a few months and the system is up and running.
My brother in law got pulled over for a busted tail light and the first thing the cop asks is ,do you have your registered firearm on you? So much for “ its to prevent crime”! For the record my in law lives in rural NY and has every right to be carrying where he was pulled over. Just another example of how the Governor considers an armed citizen the enemy!

We also live in rural western NY. My wife and I are cross-permitted concealed-carriers. This new “recertification” Cuomo signed into law is more or less a trap, I believe. As you correctly stated, your info is tied into the DMV, so they do know by your plate(let’s not even get into License Plate Readers). The recertification rate has been low because there’s been no real push,other than 1 reminder in the mail,coupled with a little rebellion among gun owners, you just don’t hear much about it since it’s been law. But, I can imagine a scenario just like the one you stated where if you did not re-certify and you get pulled over, you are now guilty of a crime and you can say goodbye to your weapons and your permit.

AT the moment there is no real federal “Gun Registry” I believe the Federal Law with regards to the ATF FFL dealers are required to keep a log of gun transactions for up to a year maybe a bit more but each state has their own mechanism as to how they keep and or document guns and gun owners. I know when NY State passed the NY Safe Act they imposed a one year registration deadline for AR type rifles. After the deadline if you had not registered your AR type rifle you were in violation of the law. Currently in the Supreme Court there is a case regarding transportation of a legally owned firearm out of city limits, Basically the City of NY states that No you cannot transport a firearm out of the city even if you legally own it. If the City of NY loses this case it may open the door to more lawsuits against restrictive states against less restrictive states when transporting weapons in passing. Expanded background checks are angling to include mental health checks although I am not sure how they can get around patient confidentiality laws. basically in the not to distant future there will be more barriers to purchase guns, I also believe there will be restrictions on magazine and gun types. I foresee a total ban on military grade weapons i.e. hi cap magazines and military style weapons i.e. Assault style weapons. If the gun industry is to survive it should probably start making non-offensive weapons, seriously I see a future where 10 or 8 round mags are mandated and Semi autos (for civilian purposes) be restricted to the same 10 or 8 rounds. I believe if we have a few more active shooter situations where the body count is high and the bad guy uses a dreaded “Assault weapon” there will be a rush of anti- assault rifle laws.

Curio and Relics records are not required to be sent to the ATF’s out of business records center:
Why don’t you have your Curio and Relics FFL?
According to the ATF:
Curios & Relics
A regulation implementing Federal firearms laws, 27 CFR §478.11, defines Curio or Relic (C&R) firearms as those which are of special interest to collectors by reason of some quality other than is associated with firearms intended for sporting use or as offensive or defensive weapons.
To be recognized as C&R items, 478.11 specifies that firearms must fall within one of the following categories:
1. Firearms which were manufactured at least 50 years prior to the current date, but not including replicas of such firearms;
2. Firearms which are certified by the curator of a municipal, State, or Federal museum which exhibits firearms to be curios or relics of museum interest; and
3. Any other firearms which derive a substantial part of their monetary value from the fact that they are novel, rare, bizarre, or because of their association with some historical figure, period, or event.
Firearms automatically attain C&R status when they are 50 years old. Any firearm that is at least 50 years old, and in its original configuration, would qualify as a C&R firearm. It is not necessary for such firearms to be listed in ATF’s C&R list. Therefore, ATF does not generally list firearms in the C&R publication by virtue of their age. However, if you wish for a classification of your particular firearm under categories (b) or (c) above and wish your item to be listed, you may submit the weapon to the Firearms and Ammunition Technology Division (FATD) for a formal classification.
Please note that firearms regulated under the National Firearms Act (NFA) may be classified as C&R items, but still may be subject to the provisions of the NFA. If your C&R item is an NFA firearm (e.g., Winchester Trappers) and you desire removal from the NFA status, you must submit it to FATD for evaluation and a formal classification.
FATD/FTISB
244 Needy Rd., Suite 1600
Martinsburg, WV 25405
Our Division does not make determinations based on drawings, photographs, written descriptions, or diagrams. In order to render an appropriate classification, please ship the physical item and any supporting information to the address above.
Please ship your item to FATD with a prepaid return shipping label with tracking for the return of your item (providing shipping account numbers, instead of providing a trackable prepaid shipping label, will not be accepted). The U.S. Postal Service recommends that long guns be sent by registered mail and that no marking of any kind which would indicate the nature of the contents be placed on the outside of any parcel containing firearms.
Are licensed collectors required to turn in their acquisition and disposition records to ATF if they discontinue their collecting activity?
No. Licensed collectors are not required to submit their records to ATF upon discontinuance of their collecting activity.
[18 U.S.C. 923(g)(4); 27 CFR 478.127]

I was in an Idaho SportsmansWarehouse this weekend. To complete my ammo purchase I was required to give a birthdate — because I was told they had to affirm I was over 18. Being obviously over 50 I simply gave her an appropriate wrong birthdate and moved on.

Interesting. No state legal requirement for this. They aren’t checking ID to confirm birthdate.So while I understand this may be a federal rule they are enforcing they aren’t doing it in any meaningful way.

As a principle I give as little data as possible to anyone especially store clerks. I have no idea if this is something legal, corporate data mining, or they are just trying to habituate people to the idea of ID checks for ammo purchases.
Last purchase I will be making from them obviously for anything and my local gun dealer will be getting my business now since he gets the 2nd Amendment, but geez…

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